At, High Court of Andhra Pradesh
By, THE HONOURABLE MR. JUSTICE OBUL REDDI & THE HONOURABLE MR. JUSTICE VENKATARAMA SASTRY
For the Appellants: Advocate General, M. Surya Gupta, Advocate. For the Respondents: Ch. Sankara Sastry, C.V. Kanyaka Prasad, Advocates. For the Corporation of Hyderabad: A. Pulla Reddy, Advocate.
Obul Reddi, J.
1. These two appeals, L.P.A. 117/69 preferred by the defendants and L.P.A. 147/71 preferred by the plaintiff, arise out of the judgment of our learned brother, A.D.V. Reddy, J., in C.C.C.A, 23/65 confirming the judgment and decree of the trial court in O.S. 38/63 only to the extent of the mandatory injuction against defendants 1 and 2 declining to grant the said injunction against the 3rd defendant, the Municipal Corporation of Hyderabad. It is for the reason that perpetual and mandatory injuctions are granted against defendants 1 and 2 that they have referred the former appeal and for the reason that mandatory injunction was not granted against the 3rd defendant, the plaintiff has chosen to prefer the other appeal.
2. The learned Advocate-General appearing for the defendants (the parties will be referred to in the manner they were arrayed in the plaint) mainly contended that the Hyderabad Municipal Corporations Act, Act II of 1956 (Hereinafter referred to as the Act) does not confer any legal right on the owner of a neighbouring or adjacent building and when the Act does not confer any such right, he cannot lay action in a civil court for a it mandatory injunction for pulling down the construction put by his neighbour on the ground that the building constructed by his neighbour is not in accordance with the sanctioned plan. The legal obligation, if any, of the defendants, according to the learned Advocate General, is to the Municipal Corporation and not to any particular individual as such as the Act does not create any private rights in individuals or adjacent owners and therefore when the Municipality compromised or compounded the violation, if any, in not constructing the building in accordance with the sanctioned plan, a neighbour or any other member of the public has no right to move the Court either for a mandatory injunction or for a permanent injunction. It is also his case that the plaintiff has not laid action on the ground of infraction of his easementary right and when there is no invasion into his easementary rights, he cannot question the construction of the building by the defendants, which, though it may not be in accordance with the sanctioned plan, was ultimately approved by the Municipality. Another ground urged by the learned Advocate General is that it is about nine years since the building has been constructed and even assuming without conceding that the plaintiff has a legal right to seek the injunctions he sought in the Court on equitable grounds the Court shall not grant a mandatory injunction for pulling down the constructions put at a heavy cost after a heavy cost after a lapse of nearly nine year.
3. Mr. Sankara Sastry appearing for the plaintiff strenuously contended relying upon the findings recorded by the trial Court as also the single Judge that to the extent the learned single Judge agreed with the trial Court there is absolutely no reason to disturb those findings recorded by the two Courts and that when the discretion in granting the mandatory injunction has been properly exercised by Two Courts, it is not ordinarily open to the appellate Court to set at naught the relief granted merely for the reason that the construction was completed about nine years ago without regard to the fact that the defendants had obtained a stay of the execution of the decree, both when they preferred the first appeal and later after preferring the L.P.A. It is also contended by Mr. Sastry that though the Act does not expressly entitle a neighbouring owner of a building to lay action in a civil Court for the reliefs that are now sought in this case, there is an implied right conferred upon him under the Municipal law and as such he is entitled to not only ask for reliefs against defendants 1 and 2 but also against the 3rd defendant so as to obtain a mandate from this Court that it shall perform the statutory functions by obeying the decree of this Court.
4. Mr. Pulla Reddy appearing for the Corporation, the 3rd defendant, contended that the learned single Judge of this Court took into consideration the fact that defendants 1 and 2 had compounded the offence, if any, committed by then and therefore for the reason rightly did not grant mandatory injunction against the 3rd defendant and as such there are no grounds for allowing the L.P.A. preferred by the plaintiff
5. In order to determine the questions involved viz., whether the plaintiff has a legal and enforceable right against not only defendants 1 and 2 but also against defendant 3 and whether the facts and circumstances of the case justify granting of the reliefs sought for by the plaintiff, it is necessary to notice the relevant facts.
6. The plaintiff and defendants 1 and 2 purchased two adjacent sites in the year 1960 from one C. Venkat Rao and another. The plaintiff immediately after obtaining sanction from the Municipal Corporation for the building, which he proposed to construct, commenced the construction of the ground floor in 1960. Defendants 1 and 2 also submitted their plan (Ex. A-3) for sanction, on 4-3-1960, but it would appear from the findings recorded by the trial Court and the learned single Judge that no construction was commenced by the two defendants before the
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middle of October, 1961, though they claim to have commenced construction immediately after obtaining sanction for their plan, Ex. A-5, The Municipal law requires that the neighbouring owner should leave 3' space from the edge of the compound wall, but the original plan, Ex. A-5, showed that no such margin was left by defendants 1 and 2. But nevertheless sanction was accorded nor construction though it was not strictly in accordance with the Municipal Laws. Construction should be commenced after obtaining sanction for construction of any building within one year thereafter and in this case as construction was not started within that period, as found by the learned single Judge and the trial Court, and construction was taken up thereafter the plaintiff who happens to be the immediate adjacent neighbour reported to the Corporation by his letter, Ex. A-6. dated 20-10-1961 that the construction commenced by defendants 1 and 2 is in violation of the Municipal Rules which require leaving a margin of 3 from the compound wall and if the defendants were to proceed with the construction that would obstruct the free flow of light and air to his building and impair the health of its inmates. The plaintiff seemed to have pursued the matter with the Corporation by the various reminders issued by him and the Corporation too issued a notice after the Corporation officials made a local inspection of the site where defendants 1 and 2 were proceeding with the construction of the building to stop further construction. The first of the series of the letters addressed by the Corporation is Ex. A-8, dated 24-10-1961. The Corporation too pursued the matter by intimating defendants 1 and 2 not to proceed with the construction without leaving the margin as required under the Rules, but 1 and 2 proceeded with the construction telling the Corporation that they were constructing the building only in accordance with the sanctioned plan, Ex. A-5 having commenced construction within the period of one year from the date of the sanction and therefore there is no violation of the Municipal Rules in so far as the construction of the building was concerned. The Municipality did not agree with the plea put forth by them and therefore insisted on the demolition of the construction that was in progress and also sought police help for pulling down the construction, Strangely, for reasons best known to the defendants and the Corporation, though the Corporation officials threatened to pull down the construction, it remained a mere threat throughout and ultimately after the building was completed by defendants 1 and 2 the Corporation felt that it was not necessary for it to insist on its pound of flesh and accepted a compounding fee or penalty of Rs. 500/- from defendants 1 and 2 and approved the construction. This attitude on the part of the Corporation in not enforcing its orders and the attitude of defendants 1 and 2 in proceeding with the construction and completing the same notwithstanding the notices issued by the Corporation, compelled the plaintiff to move the Court for the two main reliefs of mandatory injunction and perpetual injunction against defendants 1, 2 and 3.7. The trial Court found on the evidence adduced by both sides that defendants 1 and 2 were not entitled to make the construction in violation of the conditions imposed by the Corporation as per the second sanctioned plan so as to obstruct light and air essential to the plaintiff's premises and building and therefore made a decree in the following terms :".............this court both order and decree that the defendants do demolish the illegal and unauthorised construction already made by D-1, D-2, so as to leave three feet space in between the Southern wall of the building of the defendant's house and edge of the defendant's site.It is further ordered and decreed that the defendants herein are perpetually restrained from carrying herein after any further illegal constructions in infringement of the said plaintiff's rights to light and air".8. On appeal the learned single Judge of this Court, as already adverted to, modified the decree so as to operate, only against defendants 1 and 2.9. The first question that arises for consideration is whether the plaintiff has a legal right either under the general law or under the Act to ask for a mandatory and or a perpetual injunction not only against the 3rd defendant, the Municipal Corporation, but also against defendants 1 and 2. To determine the question of legal right or otherwise of the plaintiff, it is necessary to notice the relevant provisions of the Act regarding the powers vested in the Municipal Corporation when buildings are constructed in violation of the statutory requirements. Chapter XII of the Act deals with building regulations. Under section 428 any person who intends to erect a building has to give notice to the Commissioner in the form prescribed specifying the position of the building intended to be erected the, description of the building, the purpose for which it is intended and its dimensions accompanied by a plan. It is open to the Commissioner to call for additional information or additional plan and then after being satisfied that the proposed construction, as per the plan, submitted, is in accordance with the Municipal Rules, he grants sanction. The period during which the work has to be commenced is one year and if he is unable to construct the building within that period, a fresh notice under Section 428 has to be issued to the Commissioner following the procedure once again. Section 441 lays down that no alterations or deviations from the sanctioned plan can be made by any person without the written permission of the Commissioner. It will be open to the Commissioner if the buildings or works are commenced contrary to the sanctioned plan or in violation of the provisions of the Act, to cut the buildings to their size in the plan or pull them down to the extent they require to be pulled down. The plaintiff wanted the Commissioner to exercise this power vested in him by pulling down the building, as from the complaint made by him and from the inspection made by the Corporation officials it was revealed that the building was not constructed in accordance with the second plan submitted by the defendants. Section 444 is the relevant section and therefore it is necessary to read the material portion of it.10. 444. With respect to buildings which are to be newly erected the following provisions shall have effect, namely :(e) In addition to any means of ventilation required by any bye-law made under this Act every such building intended to be used as a dwelling shall be so constructed that the wall of at least one side of every room thereof shall either be an external wall or abutting an interior open space. Such external wall, except where it faces a street of not less than fifteen feet in width, shall have between it and the boundary line of the owner's premises an open space, extending throughout the entire length of such wall, at least two feet wide or, in the case of a chawl or building intended to form a range of separate rooms for lodgers at least five feet wide. Such interior open space shall have an area equal to not less than one tenth of the aggregate floor-area of all the rooms abutting thereon and shall not be in any circumstances less than six feet across. And every open space, whether exterior or interior required by this clauses, shall be and be kept free from any structure thereon and open to the sky, and shall be and be kept open to access from each end thereof".11. It is the aid of this provision that is sought by the plaintiff in moving the Commissioner for pulling down the construction to the extent it did not conform to the requirements of the provision and later when he could not succeed, he moved the civil court for mandatory and permanent injunctions. There is no provision in the Act and in fact we have not been invited to my provision in the Act, which confers a legal right upon a person who dwells in a neighbouring house to move a civil Court for the relief of pulling down that portion of the building which has been constructed without regard to the specifications of the plan and which hampers free flow of light and air into his building. Mr. Sankara Sastry however contended that the right conferred upon a neighbour or a member of the public, is a public right and the Corporation being a public body interested in hygiene, public health sanitation and free flow of light and air to the neighbours is vested with the power by the Legislature to see that no person builds a building which goes contrary to the requirements prescribed by the law. In other words according to the learned Counsel for the plaintiff, the Corporation has a statutory duty or an obligation to perform when it notices an infringement of the laws resulting in damage to the neighbours on account of the constructions put contrary to the Municipal laws, and a person who is affected or aggrieved, can ask for a mandatory injunction against the Corporation either under the provisions of the Specific Relief Act or by way of a writ of Mandamus to discharge its statutory functions which it has failed to preform, more so in this case after having taken the stand that the building of defendants 1 and 2 should be demolished.12. The factors to be considered in order to ascertain whether an action lies in a case of this nature have been stated in Halsbury's Laws of England Vol. 36, page 441, para 687. No universal rule can be formulated which will answer the question Whether in any given case an individual can sue. In answering the question it is, however, relevant to consider whether the statute was intended to protect a limited class of persons or the public as a whole, whether the damage suffered by the person seeking to sue was of the kind which the statute was intended to prevent, whether a special statutory remedy by way of penalty or otherwise is prescribed for breach of the statute, the nature of the obligation imposed and the general purview and intendment of the statute. A scrutiny of the provision in Chapter XII will make it clear that the restrictions imposed on the construction of a building and other allied matters are intended for the benefit of the public as a whole and not for any particular individual or a class of individuals as such, for the Corporation has a duty to see that public health is not impaired and there is no public nuisance or inconvenience by persons putting up buildings in any manner they choose in contravention of the requirements prescribed by it.13. Here is a case where the plaintiff alone complained that his right to free flow of air and light has been diminished by reason of defendants 1 and 2 constructing a building without leaving 3 margin from the edge of their compound wall. One fact which has to be noticed before considering the legal right or otherwise of the plaintiff is that he and defendants 1 and 2 purchased two building sites from the same owner and both of them made applications for construction of the buildings almost at the same time. While the plaintiff finished construction of the building, ground floor in 1960 and the first floor in 1961, defendants 1 and 2 started construction in October, 1961 (that is a finding of fact which we are not prepared to go into in this Letters Patent Appeal) and completed the construction by about March, 1963. There is also the further fact that the Corporation when it accorded sanction for Ex.A-5 which defendants 1 and 2 submitted in the first instance, did not insist upon the margin as required under the Rules (the rules have since been struck down by this Court). The defendants later submitted another plan, Ex. A-13, on 28-5-1962 and as Ex. A-5 did not hold good after a lapse of one year, the Corporation insisted upon strict compliance of Clause (e) of Section 444 and the Rules then in force. The construction was going on notwithstanding the notices of the Corporation for demolition and notwithstanding the several protest letters sent by the plaintiff to the Corporation that construction, it may be pointed out, was also contrary to the revised plan Ex. A-13.14. The learned Advocate General sought to contend that when the plaintiff knew that there was a defiance of the orders of the Corporation and his protests had no effect on defendants 1 and 2, that was the stage when he should have moved the Court if really his rights were effected, for a mandatory injunction from the Court to the Corporation directing it to enforce the Municipal regulations by pulling down the unauthorised or unlawful construction. Having failed to do so, and having watched the construction of buildings from stage to stage he cannot come to the Court after the building is completed and ask for pulling down the building. This argument of his is without prejudice to his contention that the plaintiff has no legal right as against defendants 1 and 2 and he could only compel the Municipality to perform its statutory obligations and functions, if any. In support of his main contention that the plaintiff has no legal or enforceable right against defendants 1 and 2, he relied upon the decision of a Division Bench of Calcutta High Court in Nandalal v. Provudayal, 1952 Calcutta 74.15. That was a case where the plaintiffs instituted a suit for permanent injunction restraining the 1st defendant from proceeding with the construction of a building on his land and for a mandatory injunction requiring him to pull down certain constructions already made. That prayer was made on the footing that they had a right to light and air and by reason of the constructions there is interference with that right. In addition to this plea there was also the plea that there was a breach of the Municipal laws and bye-laws which entitled the plaintiffs to require the defendant not to proceed with construction of the building. The grounds on which the plaintiffs moved the Court there are similar to the grounds obtaining in this case for moving the Court. The learned Judges, Harries, C.J., and Das, J. observed distinguishing the earlier Calcutta case i.e., In Re Lakshmi Moai Dassi, 1941 Calcutta 391. there was however a case where an application for a writ of Mandamus was made in that Court. Such an application may be directed only against the ladder of a public office and not against a private individual. The question whether a suit lies against an adjoining or neighbouring owner did not directly arise. The question which was debated was whether an adjoining or neighbouring owner was a person whose property, franchise or personal would be infringed. Ultimately it was held that where the plaintiffs and the defendant are adjoining owners, the plaintiffs have no right to pray either for a mandatory injunction or a perpetual injunction merely on the wound that certain proposed construction on the defendant's land may be breach of Municipal rules and bye-laws. There is no obligation, contractual or otherwise, on the part of the plaintiffs towards the defendant, which acquisition that the defendant should construct on his own land in accordance with the Municipal rules and regulations. The view expressed by the learned Judge, according to the learned Advocate General, affords a complete answer to the case of the plaintiff that he has a legal and enforceable right against defendants 1 and 2 and the corresponding duty in them.16. Mr. Sankara Sastry has challenged the correctness of this decision relying upon a decision of a single Judge in Krishna Kali v. Babulal shaw, 1965 Calcutta 143. Before we refer to Krishna Kali's case it is necessary for us to consider the earlier decisions of the same Court of three single Judges. The first of them is that of Edgley, J., in Hirendra Nath v. Calcutta Corporation, 1941 Calcutta 386. That was a case where an application under section 45 of the Specific Relief Act (old) was made for a mandatory injunction on the Corporation of Calcutta requiring the Corporation to rescind an illegal sanction given to Purneedu Nath Tagore and others to proceed with the building of certain structures which they proposed to erect Pending disposal of that application. Purnendu Nath Tagore and others were restrained by interim orders from proceeding with the construction of the proposed additional buildings. The contention of the petitioner before the learned Judge was that the Building Committee had acted illegally in sanctioning the plans infringing the relevant Municipal provisions. The same ground as is urged here was also urged viz., that if the proposed buildings were constructed, they would interfere with ventilation and sanitation of the petitioners premises and that he had no other adequate remedy under the general provisions of the law. The learned Judge after referring to the various rules governing the construction of buildings and on the facts of that case held.'............their (Rules 30 and 32) general intention seems to be compliance with them as regards alterations of and additions to an existing building, while the original structure of such building may be left intact..............."....It must be assumed that in framing the statutory rules relating to the space to be left between buildings and their height, the Legislature had in view the general convenience of all residents in the Municipal area in order to ensure proper ventilation and sanitation for the rate payers, and possibly adequate means of preventing the spread of fires from one building to another. In this view of the matter, it is impossible to say that the petitioner would not be affected by any breach of the existing rules, and, in my view, he has a clear right to insist that these rules should be strictly observed by the Corporation in reference to any plans for the extension of the Tagore building".17. The main difference between that case and the instant case is that the petitioner there approached the Court before the proposed buildings took any shape and the plaintiff in this case moved the Court after the building was a fait accompli though he had pursued the matter with the Corporation. That is why the learned Judge Edgley. J., observed at"If Mr. Ghose's interpretation of R. 94 were accepted, conformity with the provisions of R. 91 would be impossible. In my view the main intention of R. 94 is to ensure that any new building which did not leave the required space, should comply, as far as possible, with the rules contained in the schedule as regards the provision of ventilation and sanitation, and at the same time to prevent any inconvenience with would result by insisting up-on the demolition of buildings which had already been erected on the space required to be left open under the existing rules."18. The learned Judge's observations will only go to show that application of the rule leaving space between two buildings is not to be looked at as requiring absolute or cent percent compliance with the rule and any breach of violation thereof should not result in demolition of a completed building, as that would put the owner to a heavy loss and hardship, in other words, the learned Judge emphasises that resort to the Court should be at the earliest point of time before the building takes any shape and not after a new building comes up.19. The next decision on which strong reliance is placed by Mr. Sankara Sastry and also by the learned single Judge is one rendered by Ameer Ali, J. In Re Lakshmimoni Dassi, AIR 1941 Calcutta 391. That was also a case where there was infringement of the rules in not leaving space between the two buildings. The rules quoted by the learned Judge would also show that the Corporation had power under Rule 94 to relax in certain cases though the power to relax was severely circumscribed. What the learned Judge ultimately said in that case is that where the provision is primarily in favour of the general public but in the nature of things, the breach of it must injure the specific individual to quite different degree, such a right can be assumed in the specific individual. Hence, where building plans are passed and permission to build is given contrary to building restrictions contained in bye-laws whereby the premises of adjacent owner is injured as to light, air health and amenities the Corporation owes such duty to the adjacent owner, and there is in the adjacent owner such a legal right, as to file an application.20. Support is also sought to be drawn for the proposition that an adjacent owner has a legal right under the Act from a decision of Justice A.N. Ray in Krishna Kali v. Babulal Shaw, AIR 1965 Calcutta 148, where the learned Judge observed that the defendant owed a duty and an obligation under the statute not only to the Corporation as custodian of the owners of buildings, but also to the plaintiff.21. Mr. Sankara Sastry placed great reliance on this decision, which, at length, considered the earlier decisions of the same Court including the one by the Division Bench in Nandlal Ladia v. provudayal Tikriwalla, AIR 1952 Calcutta 74.22. We may, therefore, notice the facts of that case to see how far we could be persuaded to accept the view expressed by Justice A.N. Ray that the defendants owned an implied duty and obligation to the plaintiff in addition to the Corporation. The facts of that case, briefly stated, are these. The plaintiffs was the owner of building No. 177, Cornwallis street and the defendants were the owners of building No 178, in the same street. The plaintiff's premises was partly five storeyed and partly six storeyed. The defendant's house was two storeyed. Prior to 1958, it was alleged that there existed at No, 178 a two storeyed building of low height and that, in the year 1958, the said two storeyed building was completely demolished by the defendants and a new two storeyed building now existing was constructed by them in its place right from the very foundation. That was alleged to be in violation of the rules, which prescribe open space to be kept at building and space to be kept open by any person constructing a building. The defendants in or about November, 1964 started construction of the third storey of the said building and this was alleged to be in violation of the building rules. It was alleged that the defendants had actually constructed a staircase and rooms on the side space required to be kept open and committed further breach by not leaving space open on the back. It was, therefore, contended that there existed in favour of the plaintiff under the Calcutta Municipal Act an obligation on the part of the defendants either expressly or impliedly not to make any construction in breach of the building rules. It is on those grounds that the suit was instituted for a mandatory injunction directing the defendants to demolish or pull down the constructions shown in the plan annexed to the plaint. The decision of the Division Bench in Nandlal Ladla v. Provudayal Tikriwalla, AIR 1952 Calcutta 74, was distinguished by the learned Judge who quoting a portion of the decree, said that the decree granted by the trial Court was upheld by the Division Bench holding that the decree passed would stand subject to certain modifications. The learned Judge also quoted the observations viz., "that there was no obligation, contractual or otherwise, which required that the defendant should construct on his own land in accordance with the Municipal rules and regulations and that, therefore, the plaintiffs had no right to pray either for a mandatory injunction or a perpetual injunction merely on the ground that the proposed construction on the defendant's land may be in breach of Municipal rules and bye-laws". Having so extracted the view expressed by the Division Bench, no reasons are stated by the learned Judge as to why that view is not binding upon him more so when the learned Judges of the Division Bench have clearly ruled that the adjoining owners have no right to pray either for a mandatory injunction or a perpetual injunction merely on the ground that certain proposed constructions on the defendant's land may be in breach of Municipal rules and bye-laws. We are unable to hold as sought to be made out by Mr. Sastry that those observations were obiter. Those observations were made having regard to the facts presented by the plaintiff that there was an invasion or infraction into his rights by the proposed construction which diminished free flow of light and air to his building. We are of the opinion that what was expressed by the Division Bench was the ultimate decision rendered on merits and not any passing reference to the rights of an adjacent owner of a building.23. It is also to be borne in mind that Justice A.N. Ray was dealing with a case where, for a long' time, though it is not clear from the fact stated, the plaintiff had a five to six storeyed building and the defendants had a only a two storeyed building by its side. But, here is a case where both the plaintiff and defendants 1 and 2 purchased building sites from a common owner and almost, at the same time, made applications for putting up buildings. It is, of course, true that Mr. Sankara Sastry is not putting his case under the provisions of the Easements Act, but only under the provisions of the Municipal law: but yet, it is relevant to bear in mind that both the plaintiff and defendants 1 and 2 obtained sanction for construction of their respective buildings at about the same time, though defendants 1 and 2 did not proceed with the construction within the period of one year as required under the rules. Probably, if the defendants 1 and 2 had proceeded with the construction within that period of one year no grievance could have been made, for the Municipality had accorded sanction with open eyes knowing that defendants 1 and 2 had asked for sanction of the plan, Ex. A-5 without leaving that margin of 3 as required under the Act and the rules then in force.24. It is also to be borne in mind that the other two decisions in Hirendra Nath v. Calcutta Corporation, A.I.R. 1941 Calcutta 386, and In re Lakshmimoni Dassi, relate to cases where the adjacent owner came to the Court before the defendant commenced construction of the building. A mandamus was sought in Lakshmimoni Dassi In Re, AIR 1941 Calcutta 391, only against the Calcutta Municipality and not against the defendant, who was alleged to have obtained illegal sanction. It was the sanction of the plan that was assailed and a mandamus was sought against the Corporation asking it to rescind the illegal sanction. It is on those facts that the learned Judge, Ameer Ali, J., issued an order of injunction against the Corporation directing it to deal with the plan submitted in accordance with the Municipal Act and the rules. It is significant that no injunction, either mandatory or perpetual, was granted against the person, who submitted plans for erection or construction of buildings. Therefore, that case cannot be cited as an authority for showing that an adjacent owner of a building has a legal right under the Municipal law to ask for a mandatory or permanent injunction against the individual who contracts a building in violation of the sanctioned plan. It is one thing to seek a mandate from the Court to compel the Corporation to perform its statutory duty or obligation and it is another thing to use those provisions against a private individual though there may be violation on his part of the Municipal laws in the matter of constructing a building.25. Yet another decision relied upon by Mr. Sankara Sastry is in A.C. Mohamed v. Corporation of Calcutta, 45 C.W. No. 408. That was also a case where, under section 45 of the Specific Relief Act (I of 1877), mandamus was sought against the Corporation sanctioning plans in violation of the building rules. It was therefore, held by the learned Judge, Panckridge, J., that, where the amenities and sanitation of a person's property are likely to be substantially prejudiced, if plans of a proposed building, which violate building regulations, are sanctioned, such a person has a specific legal right to call upon the Corporation to see that the provisions of the statute are observed. This decision is also an authority for the proposition that an adjacent owner of a building has a legal right to ask the Corporation to discharge its duties and functions in accordance with the provisions of the Municipal law. All that was asked in the application made under section 45 was to direct the Corporation to rescind the sanction given to one Dost Mohamed Estates Limited in respect of certain proposed buildings. After referring to some of the authorities regarding the principles to be applied in an application for a mandamus, the learned judge observed.26. The authorities are not altogether easy to reconcile, but I have come to the conclusion that in the circumstances of the present case, where the amenities and sanitation of the appellants property will be substantially prejudiced, if the present plans, which violate the regulations, are sanctioned, they have the right to call upon the Corporation to see that the provisions of the statute are observed".27. So, if a mandatory injunction was granted, it is because of the facts presented in that case making out a case that amenities and sanitation of the appellant's property were substantially prejudiced. That would clearly demonstrate that, even as regards the issuance of an order of mandating against the Corporation, it depends upon the facts of such case and the extent to which injury or damage is caused in regard to amenities and sanitation of the property of the adjacent owner. That is not a case where the Court upheld any implied legal right of an adjacent owner against a person proposing to construct buildings in violation of the building rules, but a case where an adjacent owner's right was recognised when he seeks a mandatory injunction against the corporation, so that the Corporation may be called upon to strictly follow and observe the statutory provisions sanctioning building plans.28. It should not be forgotten that an action for mandamus is a judicial remedy sought from a superior court by way of a command to a public authority, Government or Corporation and not to any private individual, to do or forbear from doing any specific act, which that authority is bound to do or forbear from doing or acting, as the case may be, under the law. If it is borne in mind that the plaintiff herein is not claiming any easementary right and that he is only seeking enforcement of the Municipal against defendants 1 and 2, the distinction between the above cases relief upon by the learned Counsel for the plaintiff, and the present one will be obvious.29. We are, therefore, of the view, on a reading of the cases of the Calcutta High Court, that the view expressed by Harries, C.J., and Das, J., in Nandlal Ladia v. Provndayal Tikriwalla, AIR 1952 Calcutta 74, still holds the field so far as that High Court is concerned; and we may also add that, in our opinion, that is the correct law.30. Mr. Sankara Sastry next sought to draw support from the observations of Justice Blackwell, who agreed with Sri John William Fisher Beaumount C.J., in Bai Basantibai v. Municipal Commissioner Bombay, AIR 1931 Bombay 173. That was a case under Section 45 of the Specific Relief Act seeking a mandatory injunction against the Corporation. It is to be borne in mind that Blackwell, J, agreed with the opinion expressed by Chief Justice Beaumount, who said that 'as the Municipal Commissioner had not done anything which could be questioned, there being no legal injury caused to anyone in merely giving sanction to the building plan therefore there was no case for ordering him to forbear from doing anything under Section 45'. All that Blackwell, J., said in his concurring judgment, speaking for himself, is that the petition was entirely misconceived and that, 'if in fact they did contravene and if the person who has obtained the sanctioning of the plans begins to build pursuant to them, then there may be an injury occasioned to the property of a third person. If injury is so occasioned then, assuming that it is an injury of which the law will take cognizance, he clearly has a specific and adequate legal remedy by an action for an injunction to restrain the other party from building in contravention of the requirements of the City of Bombay Municipal Act. But it appears to me that in the present case no injury whatever is made out by the applicant. Accordingly, speaking for myself alone. I think that the petition is misconceived upon that ground also. These observations of the learned Judge are manifestly obiter having agreed with the judgment of the learned Chief Justice. Those remarks were made on the peculiar facts of that case. We are, therefore, not inclined to hold that legal right exists in an adjacent owner of a building under the Municipal law as against his neighbour, who constructs a building in deviation of the sanctioned plan in certain respects.31. There is one basic fact to be remembered, which distinguishes this case from all other cases cited. The 3rd defendant-corporation though proposed to take action against defendants 1 and 2 for breach or violation of the building rules in constructing a new building, however, eventually compromised its position with them accepting a penalty or compounding fee of Rs. 500/- thus regularising an irregular act of defendants 1 and 2. The Corporation thereby lost its right under the provisions of the Act to take any action thereafter against defendants 1 and 2 and when the Corporation had lost its right by regularising what was irregular, we cannot understand how the plaintiff could ask for any relief against the Corporation for pulling down that portion of the building constructed without leaving a space of 3', much less against defendants 1 and 2.32. While considering the question whether, under the Municipal law, an adjacent owner of a building can bring an action against the other individuals, the intention of the statute has to be taken into consideration. We are unable to say, from Chapter XII, which deals with building regulations, that the Legislature intended to vest in a private individual also the right to have the building of a neighbour pulled down merely for the reason that there is some deviation from the sanctioned plan in the construction of the building. It is to be borne in mind that the deviation from the sanctioned plan need not necessarily be one referred to in Clause (e) of Section 444. It could be any other deviation, for instance, a person who obtains a sanction of a building proposing windows and doors of particular dimensions or size or, for that matter, even rooms, may violate those conditions and decrease or increase the dimensions. Whatever deviation there may be in the construction of the building, it is a matter for the Municipality to look into and see how far that violation or breach offends the public as a whole in matters of sanitation, health and other amenities. The fact that free passage of light and air to the adjacent building is diminished by way of another building coming up by its side will not necessarily lead to the inference that it is a matter affecting the general public. Chapter XII of the Act nowhere gives an indication that an adjacent owner of a building has an implied right of action against his neighbour, who has constructed a building in contravention of the provisions of the Act and the rules made thereunder. It is for the adjacent owner, if he feels that there is any damage or injury to his amenities either in the matter of free flow of air and light or sanitation for the reason that the plans of the proposed building of the neighbour are not in accordance with the Municipal laws, to move the Court and obtain a writ of mandamus against the Corporation to observe the Municipal laws in the matter of sanctioning building plans for construction. But, as already noticed, it is a case where the plaintiff came to the Court after the building was constructed claiming reliefs against the defendants. The fact that the Corporation had, in fact, acted, upon his representations and directed demolition of the constructions that were coming up is not a ground for approaching the Court to obtain mandatory or perpetual injunction, even if it be against the Corporation, after the building was constructed. The cases of the Calcutta High Court on which strong reliance was placed by Mr. Sankara Sastry were all cases where the party sought relief from the Court at the earliest opportunity i.e., at the stage of approval of the building plans, against the Calcutta Corporation.33. Even assuming for the sake of argument that the plaintiff has an implied legal right, as held by Justice A.N. Ray in Krishna Kali v. Babulal Shaw, AIR 1965 Calcutta 148. even then the question will arise as to the stage at which he should seek proper remedy in a Court. In Currier's Company v. Corbett, Drewry & Smale's Rep. (Vol) II (1862-65) P. 355, where a suit was instituted to restrain the defendant from proceeding with or completing certain erections and buildings then being erected and, built, Vice-Chancellor Kindersley, observed :"If the Defendant's buildings had not been completed there would have been ground for interference by injunction; but as they have been completed, the question is whether the Court ought to or would order the pulling down of the buildings or give compensation in damages".34. In this case, defendants 1 and 2 only commenced construction of the two storeyed building in defiance of the orders of the Corporation and in defiance of the protests of the plaintiff, but also completed the construction of the building which took nearly one and half years. It is not enough if the plaintiff says that, for one and half years or more, he has been moving the Corporation and that the Corporation had also promised to take action and in fact passed orders that the constructions should not be proceeded with further and that, to the extent they were put up, they should be pulled down or brought down. But he should not have been rest content with moving the Corporation when the construction of the building was completed under his every eyes and nose. At least when he felt that the Corporation not once or twice, but on several occasions, failed to pull down the constructions or prevent the defendants from proceeding further with the constructions, he should have approached the Court for necessary reliefs. The demolition of the building would put the defendants to a much greater loss than what it would have been if only the plaintiff had approached the Civil Court at the earliest point of time when the foundations were being laid or before the roofing was put to the ground floor. It does not even appear that he moved the Court at the second stage of the construction of the building. He came to the Court one and half years after he first saw the building growing up from stage to stage and after the Corporation condoned the deviation from the sanctioned plan in the matter of constructions and approved the building plan as finally constructed.35. In Benode Coomaree Dossee v. Soudaminey Dossee, 16 I.L.R. Calcutta 252, Chief Justice Comer Petheram-sitting with Justice Wilson, stated that where a plaintiff has not brought his suit or applied for an injuction at the earliest opportunity, but, has waited till the building complained of by him has been completed and then asks the Court to have it removed, a mandatory injunction will not generally be granted, although there might be cases where it would be granted and that mere notice not to continue building so as to obstruct a plaintiff's rights is not when not followed by legal proceedings, a sufficiently special circumstances for granting such relief. That is how the learned Judges explained the law regarding relief by a mandatory injunction. This decision of the Division Bench of the Calcutta High Court was followed by the Madras High Court in Ulagappanambalam v. Chidambram Chetty, 29 I.L.R. Madras 1906 P. 497 and unless we are of a different view, in which case we will be in duty bound to refer to a Full Bench, we will have no option but to follow this decision and we say without and hesitation that with great respect, we follow the view expressed by the learned Judges. Subramania Ayyar and Bashyam Ayyangar JJ, who had earlier followed the decision of the Division Bench of the Calcutta High Court, in Shankaralingam Chettiar v. Stephen Augustus Ralli S.A. Nos. 959 of 1901 and 64 of 1902 (unreported). The learned Judges, Subramania Ayyar and Benson, JJ, in Ulagappanambalam v. Chidambaram Chetty, 29 ILR Madras 1906 P. 497, held that, "where the tenant of an agricultural holding, constructs a building of a character not suitable to such, holding, with the knowledge of the landlord, such landlord is bound not only to object but to take legal steps to stop the progress of the work, and, in default of doing so, the landlord is not entitled to a mandatory injunction for the demolition of the building. The same principle will apply where the party building it is not the tenant but one who does so under agreement with the owner of the kudivaram right". It may be, as pointed out by Mr. Sankara Sastry, that this is not a case of landlord and tenant; but the principle laid down governs this case also, for the plaintiff slept over till the building was completed and came to the Court only thereafter.36. What was stated by Subramania Ayyar and Bashyam Ayyangar, JJ., in Sankaralingam Chettiar v. Stephen Augustus Ralli, [S.A. Nos. 959 of 1901 and 64 of 1902 (unreported) viz., "so far as the prayer for mandatory injunction to pull down the buildings 'which had been completed before the institution of the suit is concerned, we consider that it is not a fit case in which, in the exercise of our discretion, such an injunction should be granted was endorsed in Ulagappanambalam v. Chidambaram Chetty, 29 ILR Madras 1906 P. 497, which Subramania Ayyar, J., was a party.37. The Supreme Court in Calcutta Corporation v. Mulchand, AIR 1956 SC 110, had occasion to consider the feasibility or otherwise of demolishing or pulling down a building constructed in violation of the provisions of the Calcutta Municipal Act. This decision is relied upon by both the learned Advocate-General and Mr. Shankara Sastry, the Advocate-General in support of his contention that, nine years after the completion of the building, no injunction for demolition of the building could be granted; and Mr. Sankara Sastry upon the observations viz., "that the building rules are enacted generally for the benefit of the public and where those rules have been violated and proceedings are taken for an order for demolition of the building under Sec., 363 what has to be decided is whether the breaches are of a formal or trivial character, in which case the imposition of a fine might meet the requirements of the case, or, whether they are serious and likely to effect adversely the interests of the public, in which case it would be proper to pass an order for demolition. It is on the ground that the infringement is not that of a trivial character that Mr. Sankara Sastry sought to agree with him that an adjacent owner has any right as such that there is no free flow of light and air even by leaving the margin of 3'. Calcutta Corporation v. Mulchand, AIR 1956 SC 110, was a case where prosecution was launched in a court also. Even the learned Judges, Venkatrama Ayyar and Imam, JJ., said that, by the time the matter came up before them, five years had already elapsed and, therefore, they did not feel that, after a lapse of five years, an order for demolition was called for in the interests of the public. In other words, this decision goes to show that the rights of an adjacent owner under the Municipal laws cannot be equated to the rights of the public. As already noticed the building is there in existence for the last nine years and we do not think that, even if we are in agreement with Sankara Sastry that his client has an implied legal right, an order of demolition of the building of defendants 1 and 2 should be made.38. It should be clearly borne in mind that, in this case, the plaintiff sought mandatory and perpetual injunction against the defendants only under the Hyderabad Municipal Corporations Act and not under the Indian Easements Act or under any other law. We are clearly of the opinion that the Act does not confer any rights express or implied, against neighbours who propose to construct buildings or construct buildings in breach of the building rules. The action against defendants 1 and 2 is, therefore, misconceived.39. For the reasons recorded, we have no hesitation in setting aside the judgment and decree of our learned brother, A.D.V. Reddy J., who confirmed the judgment. For the same reasons, we are unable to find any merit in the Letters Patent Appeal preferred by the plaintiff.40. In the result, the suit of the plaintiff shall stand dismissed. L.P.A No. 117 of 1969 is allowed and L.P.A. No. 147 of 1969 is dismissed. Having regard to the facts of the case, there will be no order as to costs throughout in both the appeals.Venkatrama Sastry J :41. I agree with my learned brother in his Judgment just pronounced and I wish to add a few more words.42. On a perusal of the scheme and intendment of the Hyderabad Municipal Corporations Act, 1956, I am of the opinion that the provisions lay only a public duty on the Corporation to do so many things for the public benefit and public good. Remedies have been provided in the Act itself and it enables the Municipal Corporation to act, under certain circumstances, for the public benefit. In my opinion, it is a self-contained code. We have already expressed the opinion that there is no provision in the Act imposing any duty enforceable by an aggrieved individual. In such a situation, an individual cannot sue for a breach of statutory duty, unless two conditions are satisfied viz., (1) unless the statute imposes a duty enforceable by him; and (2) unless the statute imposes a public duty. In this case, I agree with my learned brother that there is no legal right in the plaintiff to file the suit.43. Secondly, in regard to the mandatory injunction, I would also add that, if an injunction is granted for the demolition of the building now after the Corporation has compounded the offence and received Rs. 500/- from the defendants for any violation of the conditions of the permit and granted a fresh permit authorising the offending constructions to stand, it would amount to our interfering with the decision of the Municipal Council to act in the manner authorised by law viz., Compounding the offence. I do not think, that in such a situation, any mandatory injunction could be granted. I do not also think that it is open to the Court to issue any mandatory injunction, which would interfere with the right of the Corporation either to condone the offence or compound the offence when the statute permits it.L.P.A. 117/69 Allowed.
"1973 (2) ALT 8,"